And the Enforcment of an Arbitral Award of the ICC International Court of Arbitration Case Number P Between A for itself and on behalf of B Applicant v (1) X (2) Y (3) Z Respondents

• Jurisdiction: Cayman Islands
• Judge: Justice Kawaley
• Judgment Date: 14 December 2023
• Docket Number: CAUSE NO. FSD 88 OF 2023 (IKJ)
• Court: Grand Court (Cayman Islands)

And in the Matter of the Enforcment of An Arbitral Award of the ICC International Court of Arbitration Case Number P

Between

A for itself and on behalf of B

Applicant

and

(1) X

(2) Y

(3) Z

Respondents

Before:

The Hon. Justice Kawaley

CAUSE NO. FSD 88 OF 2023 (IKJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

HEADNOTE

Originating Notice of Motion for appointment of receiver and/or charging order-Grand Court Rules Orders 30, 51

Appearances:

Mr Andrew Johnstone and Ms Rhiannon Zanetic of Harneys for the Applicant

IN CHAMBERS

EX TEMPORE JUDGMENT

Background

1 The Applicants in this matter apply by Ex Parte Originating Motion dated 2 October 2023, for:

“1. A charging order pursuant to section 29 and Schedule 3 of the Judicature Act (2021 Revision) and Order 50, Rule 1(1) of the Grand Court Rules (GCR) over the Third Respondent's shares in the First Respondent (the CS Shares); and

2. The appointment of receivers on an interim basis pursuant to Order 30, Rule 1(1) and/or Order 51, Rule 1 of the GCR over the CS Shares, and over the First Respondent's shares in IH Limited (the IH Shares) (referred to collectively as the Shares);

in order to preserve and control the Shares for the purpose of satisfying the debt which remains due and owing by the Respondents under the Enforcement Order.”

2 Alternative relief was also sought (under paragraph 3 of the Motion) but was not pursued. At the hearing, Mr Johnstone for the Applicant also indicated that the appointment of Receivers under paragraph 2 of the Originating Motion would be pursued and the charging order under paragraph 1 would not be sought.

3 The procedural background to this matter is set out in the Applicant's Skeleton Argument. On 18 May 2023, the Applicant sought leave to apply to enforce the Final Award obtained on 20 March 2023, and leave was granted by the Court on 18 May 2023. Following an application by Ex Parte Summons on 1 June 2023, the Applicants obtained a 20 June 2023 Freezing Order.

4 The essence of the current position was summarised by Mr Johnstone in opening in the following way. The Final Award held that the Respondents were liable to pay in excess of US1.7 billion dollars to the Applicants and it has not been paid one cent.

5 Against this background, it is understandable that even though a challenge to the Award is pending in Dubai, the Applicant wishes to take further fulsome steps on an interim basis in order to try and secure, to the fullest extent as possible, the ability to make some recovery.

Legal Principles

The Court's jurisdiction

6 The legal principles were referred to and are not really subject to any doubt. Section 11 of the Grand Court Act (2015 Revision) confers on this Court the same jurisdiction as Her Majesty's High Court of Justice. And this Court possesses the same power to grant relief which the English High Court enjoys under its inherent jurisdiction and under its traditional common law and equitable powers.

7 The Rules of Court have dealt with the question of the appointment of receivers more explicitly, and Order 30, which was referred to, provides:

“ Application for receiver and injunction (O.30, r.1)

1. (1) An application for the appointment of a receiver may be made by summons or motion.

(2) An application for an injunction ancillary or incidental to an order appointing a may be joined with the application for such order.

(3) Where the applicant wishes to apply for the immediate grant of such an injunction, the applicant may do so ex parte on affidavit.

(4) The Court hearing an application under paragraph (3) may grant an injunction restraining the party beneficially entitled to any interest in the property of which a receiver is sought from assigning, charging or otherwise dealing with that property until after the hearing of a summons for the appointment of the receiver and may require such a summons, returnable on such date as the Court may direct, to be issued.”

8 In substance, only O.30 rule 1(1) is relevant in the present case. O.51 deals with the power to appoint receivers by way of equitable execution and that jurisdiction is defined in the following way:

“ Appointment of receiver by way of equitable execution (O.51, r.1)

1. Where an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that the appointment should be made shall have regard to the amount claimed by the judgment creditor, to the amount likely to be obtained by the receiver and to the probable costs of the receiver's appointment and may...